Jury trials are disappearing. Here’s why.

Emily Hoerner / Injustice Watch

The jury box at the Leighton Criminal Courthouse

The right to trial by an impartial jury is enshrined in the U.S. Constitution. But in U.S. courtrooms today, the vast majority of people forego this right, opting instead to settle or plead guilty.

A recent study explores the factors behind the “disappearing jury trial,” as well as its consequences for the fairness and legitimacy of the legal system. Shari Diamond, a professor of law and psychology at Northwestern University, and Jessica Salerno, an associate psychology professor at Arizona State University, surveyed 1,460 attorneys and judges nationwide about the top reasons cases don’t reach trial. The researchers solicited responses from 2016 to 2019, directing participants to a website where they could submit answers anonymously.

“What the survey revealed is that there are a number of obstacles in exercising the right to a jury trial,” Diamond said in an interview with Injustice Watch.

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Those obstacles, according to survey respondents, include the time and expense of jury trials, as well as pressure to settle that litigants receive from their lawyers, judges, and mediators.

The numbers are striking. Between 1962 and 2013, the percentage of civil cases resolved through jury trials dropped from 5.5% to 0.8%; use of jury trials in federal criminal cases declined from 8.2% to 3.6% over the same period, according to research cited by Diamond and Salerno.

Their survey also asked about changes in the U.S. legal system that have resulted in a decline in jury trials. The results were published in a December article in the Louisiana Law Review, Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges.”

Here’s a closer look at what the researchers found.

Mandatory Minimum Sentences

In the federal criminal justice system, fewer than 2% of cases went to trial in the 12-month period ending in March 2020, the most recent for which data from the federal judiciary is available.

Fifty percent of judges and 85% percent of defense attorneys surveyed by Diamond and Salerno said that mandatory minimum laws, which dictate the minimum sentence that judges must give when a defendant is found guilty, had a medium or large role in the declining number of jury trials for criminal cases. Mandatory minimum laws can incentivize plea deals, in which a defendant pleads guilty in exchange for a lesser charge or lighter sentence. In doing so, defendants forego their right to a trial.

Between March 2019 and March 2020, guilty pleas accounted for nearly 98% of criminal convictions in federal courts, where data are most reliable.

Diamond and Salerno note that in 2012, the average sentence received by a federal drug offender was three times higher after a trial than a guilty plea, pointing to the existence of a so-called “trial-penalty” for those who don’t agree to take a deal.

Damage Caps and Mandatory Arbitration

For civil cases, 61.6% of respondents who practiced in jurisdictions with damage capslaws limiting monetary awards for pain, suffering, and punitive damagessaid they played a medium or large role in making jury trials less appealing.

Such caps can incentivize plaintiffs to settle civil cases early or not pursue them at all.

Fifty-two percent of judges and attorneys also pointed to mandatory arbitration as having helped drive down the frequency of jury trials.

Many courts offer voluntary arbitration, overseen by a neutral mediator who is an expert in the pertinent legal issue. A growing number of companies have begun making this process mandatory for employees and consumers by including binding arbitration clauses in contracts.

“On average, workers who pursue legal claims through arbitration are less likely to prevail, and they receive smaller awards than those who pursue employment claims in court,” wrote Diamond and Salerno.

This method of settling cases ranked lowest on fairness and personal preference in the authors’ survey, as it essentially strips people of their right to a trial by jury or judge.

Saving the Jury Trial

Lawyers and judges surveyed broadly agreed that despite the downsides of jury trials, including time and expense, they remain one of the fairest methods for handling cases.

The authors name several policy changes that could help reverse the decline in jury trials, including eliminating or raising the level of damage caps, ending mandatory arbitration, reforming sentencing guidelines,  and abolishing mandatory minimums.

“You can see in [judges’ and attorneys’] perception from both sides of the aisle that juries are worth the cost associated with them,” Diamond told Injustice Watch. “To the extent that they are a valued and fair way of dealing with controversies or evaluating charges, we say they are worth having and worth protecting.”